Jointa Galusha, LLC - Interim Decision, May 7, 2002

Interim Decision, May 7, 2002

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
625 Broadway
Albany, New York 12233-1010

In the Matter

- of -

Application for a Mined Land Reclamation Permit pursuant to Article 23 of
the Environmental Conservation Law ("ECL"),a Freshwater Wetland Permit pursuant to
Article 24 of the ECL, a State Pollutant Discharge Elimination System ("SPDES")Permit
pursuant to Article 17 of the ECL, and an Air Pollution Control Permit pursuant to
Article 19 of the ECL for a proposed mine in the Town of Hartford, Washington County

- by -

Jointa-Galusha LLC.

Application No. 5-5538-00009/00001

INTERIM DECISION

May 7, 2002

Interim Decision of the Commissioner

Introduction and Background

This Interim Decision relates to appeals from the Issues Ruling ("Ruling") of Administrative Law Judge ("ALJ") P. Nicholas Garlick dated October 1, 2001. The ALJ's Ruling addresses various issues raised by the parties in connection with the application of Jointa-Galusha, LLC for various environmental permits from the Department of Environmental Conservation ("Department" or "DEC") to construct and operate a mine on its property in the Town of Hartford, Washington County.

On October 22, 2001 appeals to the Ruling were filed by Jointa-Galusha, LLC ("Applicant") and DEC staff ("Staff"). Two separate appeals were timely filed by an unincorporated association, Hartford Opposes Mineral Extraction ("H.O.M.E."). H.O.M.E. consists of approximately thirty individuals residing in the vicinity of the proposed project and two individuals, Darlene Falta and Stephen Comer, who are not members of H.O.M.E., collectively referred to herein as the "Intervenors". A reply brief was filed by Staff on November 2, 2001 and by the Applicant and the Intervenors on November 5, 2001. Although a petition for amicus status was filed on behalf of a group interested in Native American issues, and representatives of the group appeared at the issues conference, no appeal was filed on the denial of party status.

Project Description

The Applicant owns an approximately 1,300 acre parcel situated in the Town of Hartford, Washington County, on which it currently conducts mining operations.(1) It proposes to expand its mining operation with the addition of a new mine which would occupy approximately 190 acres in the center of the 1,300 acre parcel.

The project proposed by the Applicant is a mine ("Project") consisting of both the extraction of consolidated rock and an aggregate processing operation which will provide aggregate materials for construction and manufacturing purposes. Mining will be accomplished by drilling and blasting rock face, averaging approximately 50 feet in height. Depending upon market conditions, the life of the mine is expected to be between 50 and 100 years. The site will be reclaimed with an approximately 173 acre lake surrounded by vegetated uplands, upon the conclusion of mining operations.

In connection with its proposal, the Applicant has applied for a Mined Land Reclamation Permit ("MLRP") pursuant to Environmental Conservation Law ("ECL") Article 23, Title 27, and Parts 420 through 425 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("NYCRR"); a State Pollutant Discharge Elimination System Permit ("SPDES") pursuant to Article 17 of the ECL and 6 NYCRR Parts 750 to 758; a Freshwater Wetland Permit pursuant to Article 24 of the ECL and 6 NYCRR Part 663; an Air Pollution Control Permit pursuant to Article 19 of the ECL and 6 NYCRR Part 201, et seq.

DEC, as lead agency for the review of the Project under the State Environmental Quality Review Act ("SEQRA") (ECL Article 8, 6 NYCRR Part 617), determined on April 6, 2000 that the Project may have a significant environmental impact and required the preparation of an Environmental Impact Statement ("EIS").

Standards for Adjudication

Under the Department's permit hearing procedures, an issue is adjudicable if "it is proposed by a potential party and is both substantive and significant." 6 NYCRR § 624.4(c)(1)(iii) (ii). An issue is "substantive" if there is sufficient doubt about the applicant's ability to meet statutory or regulatory criteria applicable to the project, such that a reasonable person would require further inquiry. In determining whether such a demonstration has been made, the ALJ must consider the proposed issue in light of the application and related documents, the draft permit, the content of any petitions filed for party status, the record of the issues conference and any subsequent written arguments authorized by the ALJ. An issue is "significant" if it has the potential to result in the denial of a permit, a major modification to the proposed project or the imposition of significant permit conditions in addition to those proposed in the draft permit. 6 NYCRR § 624.4(c)(3).

Prior decisions of the Commissioner establish that adjudication of issues occurs only where the ALJ has sufficient doubt about an applicant's ability to meet all statutory and regulatory criteria such that a reasonable person would inquire further (Matter of Hydra-Co. Generations, Inc., Interim Decision of the Commissioner, April 1, 1988) and where, in the ALJ's judgment, there is a reasonable likelihood that adjudication would result in amended permit conditions or project denial. Matter of Jay Giardina, Interim Decision of the Commissioner, September 21, 1990.

In situations where Staff has reviewed an application and finds that a component of the applicant's project, as proposed or as conditioned by the draft permit, conforms to all applicable requirements of statute and regulation, the burden of persuasion is on the potential party proposing the issue related to such component to demonstrate that the issue is both substantive and significant. 6 NYCRR § 624.4(c)(4). Agreement by Staff and an applicant over the terms and conditions of the proposed permit, the permit application and the draft permit prepared by Staff constitutes prima facie evidence that a proposed project will meet all of the relevant statutory and regulatory criteria. See, Matter of Sithe/Independence Power Partners, L.P., Interim Decision of the Commissioner, November 9, 1992. The burden imposed on the intervening party in such instances was upheld by the Third Department in Matter of Citizens For Clean Air v. New York State Dep't of Envt'l Conservation, 135 A.D.2d 256 (3rd Dept. 1988). There, the court, in upholding the Commissioner's determination to exclude certain issues from adjudication, stated that the burden on the intervenors was "... to provide a clear explanation of the issues sought to be adjudicated...". Id. at 261.

While the intervenor's offer of proof at the issues conference need not be so convincing as to prevail on the merits, its offer must amount to more than mere assertions or conclusions. See, Id. "The purpose of adjudication is not simply to develop or refine information concerning the project but rather to aid in decision making." Matter of Sithe, supra. Conducting an adjudicatory hearing where "offers of proof, at best, raise uncertainties," or where such a hearing would "dissolve into an academic debate" is not the intent of the Department's hearing process. Matter of Adirondack Fish Culture Station, Interim Decision of the Commissioner, August 19, 1999, at 8, citing Matter of AKZO Nobel Salt Inc., Interim Decision of the Commissioner, January 31, 1996.

Judgments about the strength of the offer of proof must be made in the context of the application materials, the analysis by Staff, draft permits and the issues conference record. Offers of proof submitted by a prospective intervenor may be completely rebutted by reference to any of the above, alone or in combination. In such a case, it would be a disservice to the applicant and the public at large to proceed any further with time consuming and costly litigation. See, Matter of Bonded Concrete, Inc., Interim Decision of the Commissioner, June 4, 1990.

Accordingly, the environmental permit information contained in the application for the various permits it seeks, the draft permits and attendant information required by the Department, constitutes the applicant's prima facie case for issuance of the Department's permits. See, Matter of Athens Generating Company LP., Interim Decision, June 2, 2000, p. 4, citing Sithe ,supra. See, also, Matter of 4'Cs Development Corporation, ALJ Ruling, February 27, 1996; Matter of Waste Management of NY, LLC., Interim Decision, May 15, 2000. The application materials are available at the issues conference to assist the DEC ALJ in determining if there are issues requiring an adjudicatory hearing.

In cases where the Department is lead agency under SEQRA, issues concerning the sufficiency of the Draft EIS may be adjudicated. 6 NYCRR § 624.4(c)(6)(i)(b). Such issues must, however, be substantive and significant as those terms have been further described above. In addition, the ability of the Department, as well as other involved agencies to demonstrate that the identified adverse impacts have been avoided or reduced to the maximum extent practicable in making the requisite findings statement is likewise subject to review. 6 NYCRR § 617.9. See Matter of Dailey, Inc., Interim Decision of the Commissioner, June 20, 1995.

The adjudication standards outlined above were designed to provide a fair and efficient mechanism in determining the factual matters deserving further environmental review. Underlying this principle is the presumption that the permit application materials and other attendant documents are sufficient to permit a meaningful review. Accordingly, the standards for adjudication would be evenly applied in the first instance.

Importantly, however, as noted below and as recognized by the parties in their appeals and responses thereon, certain unmapped and jurisdictional freshwater wetlands were found to exist on site. The presence of these unmapped jurisdictional wetlands must be considered in the context of the Project and this environmental review, as well as in contemplation of potential SEQRA findings that must be made in the Final EIS. That consideration can take place through adjudication. The hearing rules contemplate such an action. 6 NYCRR § 624.4(c)(6)(i)(b). Where a full record needs to be developed for decision making purposes, such as with the unmapped jurisdictional freshwater wetlands issues in ALJ Ruling 2, sufficiency of the record demands they be fully addressed.

ALJ Rulings, Appeals and Discussion

ALJ Rulings on Wetland's Impact Issues

The ALJ made four rulings comprising Ruling 1, which relate to potential adverse, unmitigated impacts to wetlands presented by the Applicant's Project. The ALJ determined that issues with respect to the impact of the mine on the recharge of wetlands were resolved by Applicant's completion of a study analyzing those impacts. The ALJ also found the Applicant's evidence on the expected rainfall and the impermeability of the clay under the wetlands provided a reasonable basis for the finding that there were no likely groundwater supply problems. With respect to the threat of invasive species migrating into the wetlands, the ALJ found that this proposed issue was speculative and that Intervenors' offer of proof was insufficient. Finally, the ALJ concluded that the issue with respect to the impacts on the wetlands from pumping water from the mine should be adjudicated unless the Applicant withdrew its plan for pumping water from the mining site into the wetlands.

Position of the Parties on Appeal

The Intervenors appeal all issues related to Ruling 1. The Intervenors claim that information in the Draft EIS reveals that 20 acres of wetlands on the western portion of the property would suffer irreparable harm due to dewatering that cannot be mitigated by pumping, and this issue was not addressed by the ALJ. The Intervenors also attack the Applicant's undated and unsigned water recharge study asserting that it is inadequate and that it can not be used to support DEC decision-making due to these flaws. The Applicant claims that since the ALJ's Ruling resolved each of the Intervenors' theories with respect to the destruction of 20 acres by the Project and that its detailed hydrogeology studies conclusively refute Intervenors' theories, no issue to adjudicate remain. The Applicant also maintains that the Intervenors' claims with respect to the unsigned and undated study should be rejected, as not supported by the inapposite case offered by the Intervenors, as well as the detailed explanation of the study by the Applicant's expert.

The Intervenors also challenged the ALJ's Ruling with respect to groundwater supply issues, disputing the Applicant's contention that a thick layer of impermeable clay is located below the wetland. They contend that the amount and location of the test borings in an area over 60 acres in size was insufficient and required adjudication. The Intervenors also maintain that their request for access to the Project site, in order to provide support for their position, should have been granted by the ALJ. The Applicant states that following the Issues Conference, it conducted an additional investigation of the clay substrate to the east and northeast of the proposed mine area. This investigation, which consisted of twenty additional investigative borings, demonstrates that there should be no doubt about the adequacy of the clay layer to act as a barrier to wetlands water loss. Staff found that the assumptions in Applicant's studies were supportable and demonstrated that the wetlands hydrology will not be significantly impacted by removal of the hill through mining.

The Intervenors also appealed the ALJ's Ruling which concerned the potential impacts of pumping water from the mine on the wetlands. The Intervenors agree that if Applicant withdraws its pumping plan, as proposed, then it would be unnecessary to adjudicate the impacts of invasive species, water temperature, pH and contaminants. However, the Intervenors still maintain their concerns about invasive species resulting from pumping should be adjudicable, since their offer of proof was the same as the other potential impacts from pumping which were found to be adjudicable. The Intervenors also maintain that the ALJ's Ruling on pumping remains adjudicable, even if the Applicant abandons the pumping proposal, based upon issues relating to long-term monitoring of the wetlands required by Special Permit Condition 19A .Staff clarified its position with respect to this Ruling, stating that although Special Condition 19A is not related to the Applicant's pumping proposal, it remains necessary to ensure that any future impacts of the Project are detected and remediated.

The Applicant, in its appeal, stipulated for the record that it would withdraw its plan to pump water from the mine into the adjacent eastern wetlands and consented to such stipulation being incorporated into the MLRL permit. The Applicant argues that since it has formally stipulated not to pump water from the mine, the ALJ's Ruling on pumping is moot. The Applicant also contends that its stipulation to be bound by the monitoring plan, through Special Condition 19A, leaves no issue remaining to be adjudicated. The Applicant further asserts that the ALJ's Ruling that the Intervenors failed to demonstrate there was an issue with invasive species on the site, should be upheld based upon this stipulation not to pump, as well as based upon the acknowledgment in the Intervenors' report that the invasive species, purple loosestrife, is already present at the site.

Discussion

My review of the various offers of proof made by the Intervenors leads me to conclude that the concerns raised by the Intervenors on these issues do not merit adjudication. The objections to one of the Applicant's studies based on its being undated and unsigned were correctly discounted by the ALJ and the Intervenors have not offered adequate proof that any of the studies provided by the Applicant are flawed. Likewise, the Intervenors have failed to offer more than speculation that the clay layer underlying the wetlands complex is not continuous and that there is a danger of the dewatering by seepage of wetlands waters into the underlying soils. I am satisfied that the Applicant has thoroughly evaluated the presence of the clay layer underlying the wetlands complex and that Intervenors have failed to raise sufficient doubt with respect to the Applicant's findings to advance this issue for adjudication.

The ALJ's Ruling on the danger of spreading of such invasive species as purple loosestrife through pumping of water from the mine site into the wetlands is also upheld. In addition to the fact that the Intervenors' own report on invasive species shows the presence of purple loosestrife already on the premises, the Intervenors' concerns regarding invasive species is rendered moot by the Applicant's withdrawal of its pumping plan. Similarly, the Intervenors' concerns that such pumping would introduce water of different temperature and pH and possibly contain contaminates, are also rendered moot by the Applicant's decision not to pump.

Accordingly, the rulings of the ALJ on potential impacts to the wetlands will not be disturbed.

ALJ Rulings on Wetlands Permitting and Jurisdictional Issues

The ALJ made seven rulings for Ruling 2 on issues related to the unmapped wetlands that were discovered during the permitting process for the Project. Given the potential negative impact to these wetlands by the Applicant's proposed Project, the ALJ required the Department to "assert jurisdiction" over the unmapped wetlands prior to the Project commencing, as required by the Commissioner's decision in Matter of Dailey, supra. The ALJ also required the Applicant to obtain a wetlands permit from the Department prior to the construction of a proposed access road from the mine site. Although the ALJ held that the hearing process could continue on other issues during the period required for the remapping and permit application process, the ALJ resolved that it was premature to decide issues related to the wetlands standards for the new wetlands permit. However, the ALJ did rule that the issue of an alternate location of the access road, exiting to the north of the site, was not premature and could be adjudicated in the interim. Finally, the ALJ held that no issue existed with respect to the adequacy of proposed compensatory wetlands, even though Applicant's mitigation plan involved the creation of wetlands to mitigate for the damage to the unmapped wetlands impacted by the access road.

Position of the Parties on Appeal

The Applicant and Staff appeal the ALJ's Ruling requiring the Department to assert jurisdiction over the unmapped wetlands and requiring the Applicant to obtain a wetlands permit for the access road work. Both argue that the Department has no authority to regulate unmapped wetlands. Additionally, they assert that the wetlands in the present case will receive protection through the coordinated State and federal oversight in accordance with the review required by the required permits, as well as the fact that the proposed Project meets all applicable standards that would be imposed in an access road wetlands permit. The Intervenors agree with the ALJ with respect to the need to assert jurisdiction and to obtain a permit for the unmapped wetlands to be impacted by the access road. However, the Intervenors argue further that the Department has a mandatory duty to assert jurisdiction in accordance with ECL § 24-0301(7) and Matter of Dailey and that precedent dictates that other permits and processes do not affect the duty of the Department to protect wetlands in accordance with the specific protections set forth in Article 24.

The Applicant argues that the ALJ's Ruling denying a suspension of the proceedings for the Department to assert jurisdiction should be affirmed, since postponement at this stage would be unconscionable based upon the actions of the Department, and unnecessary, since there are no disputed wetland impacts. The Intervenors appeal this determination contesting that Department regulations require applicants to submit all necessary applications simultaneously, and that principles of efficiency require that this matter not be split into two separate proceedings. The Intervenors also assert that holding two hearings would violate SEQRA, since relocation of the road could impact other issues.

While conceding that the Draft EIS did not discuss the two alternate routes to the north suggested by the Intervenors, the Applicant appeals adjudication of the access road alternative, raising issues in its appeal to demonstrate that the two northern routes are impracticable. The Intervenors argue that adjudication of alternative access roads should be upheld as a matter of law, since Staff's failure to appeal this Ruling indicates Staff disagrees with the Applicant and that such issues must be adjudicated in accordance with 6 NYCRR § 624.4(c)(1). Additionally, the Intervenors, contend the Commissioner's Interim Decision in Matter of Saratoga County Landfill, October 3, 1995 requires that the statements made by the Applicant's attorney in its appeal arguing that road alternatives to the north are not feasible should not be considered on appeal since such contentions do not constitute expert proof and were not in the record. The Intervenors also assert that alternatives for the road must be evaluated under the State wetlands permit, not under SEQRA.

Finally, the Intervenors seek to reverse the ALJ's determination that the mitigation plan provided by the Applicant is adequate. The Intervenors argue that since there are factual disputes with respect to whether the mitigation plan provides different functions and values than the wetlands destroyed by the Project, the issue must be adjudicated. Further the Intervenors assert that this issue should be adjudicated, regardless of whether an additional wetlands permit is required of the Applicant. The Applicant contends that this Ruling should be affirmed since the ALJ properly found that the Intervenors have failed to demonstrate that their wetlands mitigation plan is inadequate. Staff agrees, arguing that the best location for the new wetlands dictates the species to be planted and that the mitigation plan is adequate even though different functions and values will be implemented than the wetlands proposed to be lost.

Discussion

The above issues presented by the parties have broad substantive and procedural implications on how the Department carries out its permitting and environmental review obligations for unmapped, yet jurisdictional wetlands. Under the particular factual and procedural circumstances unique to this case, I will harmonize my resolution of the issues to ensure that a proper and substantive analysis will result. Concomitantly, I am mindful that permit applicants need regulatory certainty and a timely review of their permit applications. It is in this context that I resolve the appeals regarding the ALJ's Ruling 2, on the issues raised by the impacts of the proposed mining project on the unmapped jurisdictional freshwater wetlands.

No party disputes that approximately thirty-five acres of unmapped wetlands exist on the Applicant's property in the area of the Project. These wetlands are not included on the Department's final freshwater map applicable to the Project site.(2) However, these additional freshwater wetlands are connected to the mapped freshwater wetland on the Applicant's property, and thus qualify as wetlands subject to the jurisdiction of the Department. In fact, the Applicant proposes to disturb some of these jurisdictional unmapped wetland areas with its proposed access road.(3) As such, regardless of their present status, these unmapped wetlands should be treated as part of an entirely larger freshwater wetland complex subject to the jurisdiction of the Department. This is required by the duty imposed upon the Department to safeguard New York State's valuable wetlands resources in accordance with the authority set forth in the State's "Freshwater Wetlands Act" ("FWA")(4).

However, contrary to the assertions of the Intervenors, I find that suspending the permit review process to allow for a map amendment hearing on the existing unmapped jurisdictional freshwater wetlands, is unwarranted. The unmapped wetlands in question are able to be protected through the State wetlands permitting process. (5) Further, I find the adjudicatory hearing can be used to develop a record on the impact of the Project on the wetlands such that both the procedural and substantive requirements of the freshwater wetland regulations and SEQRA can be met. The official amendment of the existing final freshwater wetlands map to include the currently unmapped jurisdictional freshwater wetlands can be accomplished in time, following the adjudication of facts specific to the Project.

Therefore, in order to move the application forward for decision-making and to ensure administrative efficiency in the hearing process, any hearing to adjudicate issues required by this Interim Decision will be suspended pending the modification of the existing draft wetlands permit to address these new jurisdictional wetland areas and to make any additional modifications necessary for the Applicant's proposed access road, given the recognition of the jurisdictional nature of these unmapped wetlands. Since both the Applicant and Staff agree that all standards for such a permit have been met, and the Applicant has previously filed a permit for these unmapped wetlands with the Department, the amendment of the existing wetlands permit, already made part of this record, should be able to occur expeditiously.(6)

Although the parties are encouraged to stipulate to any issues necessary to modify the permit to avoid adjudication on the amended wetlands permit, such as the boundary of the wetlands and the wetlands classification, sufficient opportunity will be given to fully develop the record in the hearing process, regarding all wetlands issues related to the access road, except as otherwise limited by this Interim Decision. (7) In particular, the existing wetlands permit should be modified to address these new jurisdictional wetland areas as well as any modifications to the Applicant's proposed access road necessitated by the discovery of "Wetland K". Further, the northern access road, as an alternative to the Applicant's preferred proposed access road, will need to be further developed on the record as an alternative that may minimize adverse impacts to the freshwater wetlands.

However, based upon the present plan for the proposed access road, I uphold the ALJ's determination that the Applicant's proposed mitigation plan is sufficient. Since it is clear that this plan included mitigation for the potential impacts of the proposed access road, the plan to construct eight acres of new wetlands to mitigate impacts to the approximately .22 acres of State jurisdictional wetlands and 1.5 acres of federal wetlands that would be lost by this Project is more than adequate to support the existing wetlands permit, as well as the modification of the permit to formally include the access road, regardless of its ultimate classification. I find that the replacement ratio for the wetlands to be impacted is satisfactory and determine that the Intervenors' offer of proof on this point is insufficient. Further, the Intervenors have not met their burden of proof to demonstrate that the plan is inadequate based upon claims that the new wetland will provide different functions and values than the wetlands being replaced. Staff's assertion that the plan is reasonable based upon the best location available for the compensatory wetlands is convincing. Finally, no further inquiry on this issue is required as the Applicant's proposed mitigation plan has been subject to a thorough review and a full opportunity to contest that review has been afforded to the Intervenors. However, if it is determined during the hearing process that an alternative route to the proposed access road would in fact be preferable, there would be an opportunity to review the mitigation plan in light of that determination.

ALJ Rulings on Noise Issues

The ALJ made six rulings on noise issues for Ruling 3 and all were generally rejected for adjudication except for one. The ALJ's rulings provided that an increase in the noise levels as a result of mining activities is insufficient to require adjudication and that issues with respect to noise impacts on domestic animals, the number of truck trips allowed each day, the permitted hours of operation of the mine, and the location of noise receptors, did not require further inquiry. The only noise ruling advanced to adjudication by the ALJ was his determination that the Applicant must better identify the sources of noise from machinery necessary for mining operations and the associated noise mitigation measures proposed. However, in so ruling, the ALJ also stated that the "DEIS does not address the requirements in SEQRA that noise impacts be minimized".

Position of the Parties on Appeal

The Intervenors' appeal maintains that the issue of increased sound levels from mining operations should be adjudicated. They assert that the Department's noise policy has yet to be interpreted to decide the question of whether significant increases in the relative noise levels need to be mitigated, regardless of the fact that absolute noise levels remain in a quiet range. The Intervenors also contest the Applicant's position that there is no issue in dispute with respect to noise impacts, since they maintain the record is inadequate and the Applicant's noise study was faulty. The Applicant and Staff contend that the Applicant is in full compliance with DEC's Noise Policy and since the Intervenors have not demonstrated any regulatory or statutory criteria that the Applicant will be unable to meet, noise issues should not be adjudicated.

The Applicant appeals the ALJ's Ruling, which questions the extent to which the Applicant has satisfied SEQRA with respect to mitigation and identification of noise sources. The Applicant argues that the methodology of measuring noise emissions for its proposed mining application based upon existing equipment from a similar mining project has been consistently accepted by the Department and is the best method to identify equipment and projected noise levels, since the machinery will not be purchased for several years, and equipment specifications are not as accurate in predicting noise emissions. Additionally, the Applicant argues that Department precedent has denied adjudication of noise issues where similar mitigation was present, and, thus, the doctrine of stare decisis requires the same result in this case. The Intervenors, in response to the Applicant's appeal, contend that the precedent cited by the Applicant is distinguishable and principles of stare decisis do not apply, particularly since, contrary to these cases, the Intervenors offered substantial mitigation measures not addressed by the Applicant. They also contend that the methodology for the noise study should not be found to be reliable since it was not prepared by a noise expert.

Discussion

In making his determinations with respect to Ruling 3, the ALJ held that the only noise issue to be adjudicated, would require the Applicant to better identify each piece of mining machinery to be used and the associated mitigation measures proposed. In so ruling, however, the ALJ also implied that the Draft EIS did not sufficiently address mitigation of noise impacts, generally, as required by SEQRA. In my view, based upon the language of the ALJ, the ALJ's holding should not be narrowly applied solely to the issue of machinery and equipment, but rather should be expanded generically.

Therefore, I am constrained to reverse the ALJ on this Ruling to the extent that mitigation measures were foreclosed for adjudication on noise issues except for the machinery and equipment issue. In doing so, I note that offers of proof can take the form of the identification of some defect or omission in the application. Matter of Oneida Resource Recovery Facility, Interim Decision, 1982. Here, the ALJ acknowledged that additional information is needed from the Applicant with respect to noise mitigation measures, and thus there is an omission of necessary information that should be developed on the record. Such information is necessary to enable an evaluation on whether the noise levels have been minimized to the maximum extent practicable. Accordingly, further information on noise and its impacts on the surrounding area when tested in the adjudicatory context will allow for the 'hard look' required by SEQRA.

ALJ Rulings on Archeological Issues

The ALJ made five rulings comprising Ruling 4, rejecting all issues for adjudication with respect to the potential adverse impacts of the mine on the archeological resources on the site. The ALJ determined that there is no dispute of fact warranting adjudication of the extent or unique quality of the resources at the site or the consideration of alternatives by the Applicant. In his ruling he found it reasonable for Staff to rely on the Office of Parks, Recreation and Historic Preservation's ("OPRHP") determination with respect to an assessment of resources and the sufficiency of the Draft EIS mitigation strategies. The ALJ also found the failure of the Applicant to furnish Intervenors with the most current version of the Data Recovery Plan ("DRP"), the plan to mitigate the loss of any archeological resources at the site, constituted harmless error and did not create an adjudicable issue.

Position of the Parties on Appeal

Each of the archeological rulings appealed by the Intervenors involve their contentions that the site of the proposed mine includes unique archeological resources and that the evaluation of resources on the site and the analysis of mitigation to protect those resources is deficient. Staff and the Applicant dispute that the site is unique and assert that since mining will impact only a small portion of the entire 1,300 acre site, a majority of the archeological resources will be preserved in their current environmental setting. Staff and Applicant further contend that the detailed studies and surveys undertaken by the Applicant, and by its three experts, are extensive, and therefore, no additional site assessment is necessary. On the issue of the adequacy of the alternatives analysis under SEQRA, both Staff and the Applicant state that alternatives have been adequately evaluated.

The Intervenors also appeal the denial of review of the sufficiency of the DRP as well as the lack of opportunity for public input on the DRP. With respect to the adequacy of the DRP, the Applicant and Staff maintain that the DRP is more than adequate, and actually will make a major contribution in the archaeological community. Staff also contends that since the DRP is similar to the plan in the Draft EIS, there was a sufficient opportunity for public comment.

Discussion

In my judgment, the Intervenors have failed to raise any adjudicable issues with respect to archeological concerns. The record reveals that the Applicant, in close consultation with OPRHP, has undertaken several archaeological studies of the site, demonstrating a thorough review of the impact of the mine on the archaeological resources on the site, as well as recommending appropriate mitigation. Experts in this area have unequivocally stated that there is nothing unique about the archaeological resources on the site that would require complete avoidance, rather than preservation of the resources as proposed by the Applicant. Ruling at 16; Transcript at 199. Further, the DRP describing the mitigation to be undertaken by the Applicant has been characterized as providing a significant scientific contribution to this area. Ruling at 15; Transcript at 199. Finally, the Intervenors' claims with respect to insufficient public input on the DRP also fail. The Intervenors were provided with an opportunity to comment on the substance of the DRP, through the review of the Draft EIS, as well as the final version. Thus, as ruled by the ALJ, no issues on the impact of the Project on archaeological resources will be advanced to adjudication.

I also note the ALJ's language to the effect that the impact of the Project on archeological resources will be considered by me when deciding whether and on what terms to issue the permits sought. This language also appears in somewhat different form in Ruling 3 and Ruling 8. Generally, the ALJ, in making these statements, makes reference to my duty to weigh and balance relevant environmental impacts with social, economic and other considerations as required by SEQRA. See 6 NYCRR § 617.11(d)(2). For the record, I do not consider these statements a component of the particular ALJ rulings, but rather a restatement of my SEQRA obligations. However, the language of certain rulings suggests that a further environmental inquiry is needed. In those cases, I have required development of the record to facilitate the 'hard look' required by SEQRA and, accordingly, I have adjusted the ALJ's Rulings as necessary.

ALJ Rulings on Visual Impact Issues

The ALJ made three rulings for Ruling 5 on visual impacts created by the mine. The ALJ found that the Intervenors had made a sufficient offer of proof regarding the potential for adverse visual impacts from the mine to aesthetic resources, as the mine may be visible in the future from the Champlain Canal and U.S. Route 4. Likewise, the ALJ ruled that the issue regarding lights at night from the mine would be adjudicated unless an appropriate change is made to the mining permit, limiting light usage. However, the ALJ ruled that there was no adjudicable issue raised with respect to the visual impact of removal of the hill.

Position of the Parties on Appeal

No party appealed the ALJ's Ruling with respect to adverse impacts from lighting during night operations, as the Applicant has agreed to a permit modification to limit the use of lights. The Applicant and Staff each appeal the ALJ's Ruling advancing for adjudication the issue of whether in approximately fifty years the mine will be visible from the Champlain Canal or U.S. Route 4. The Applicant and Staff argue that any potential impacts created by the project have been adequately identified and mitigated by the special conditions of the draft mining permit. Staff also offer to insert an additional planting condition in the permit as an alternative to adjudication of this issue. In response the Intervenors argue that there are visual impacts that should be evaluated cumulatively and the mitigation for those impacts need to be adjudicated. The Intervenors dispute Staff's contention that an additional draft permit condition with respect to planting trees will resolve this issue.

The Intervenors appealed denial of adjudication on the issue of the visual impacts of the removal of the hill from the mine, contending it is a prominent feature of the landscape and that it must be adjudicated under the decision of the Deputy Commissioner in the Matter of Lane Construction Company, Decision of the Deputy Commissioner, June 26, 1998. The visual impacts occasioned by the loss of the hill are not, they claim, subject to mitigation as vegetative planting cannot screen the loss of the hill. In response the Applicant and Staff argue that the minimal visual impacts from the gradual reduction of an unnamed hill will be imperceptible in this case, distinguishing Matter of Lane Construction, where a prominent geographic feature of the area was leveled.

Discussion

The ALJ is upheld in his rulings on visual impacts from the mine. I find that the Intervenors have raised a sufficient offer of proof with respect to the visibility of the mine from the Champlain Canal or U.S. Route 4 during Phase 4 of the mining plan. Any proposed permit conditions to mitigate the potential visual impacts on these resources should be reviewed in the adjudicatory process. I further agree with the ALJ that the visual impacts of the removal of the hill through mining do not warrant adjudication. Such removal will be gradual over a number of years and does not compare with the circumstances present in the Matter of Lane Construction, Decision of the Deputy Commissioner, June 26, 1998, where significant unmitigated adverse impacts were found to result from the depletion of a geographic landmark, and the close proximity of the proposed mine site to surrounding historic properties.

ALJ Rulings on Groundwater Issues

The ALJ made two rulings on Ruling 6, groundwater issues. The ALJ determined that in light of the proposed well arbitration agreement, no issue for adjudication exists regarding any potential adverse impact to neighboring wells by the proposed mine. However, he did find that an issue existed as to whether the proposed agreement provides adequate mitigation in light of the more stringent requirements set forth in a similar agreement in another recent case. In finding that the Intervenors failed to meet their burden of proof to establish that an adjudicable issue existed with respect to the potential dewatering of neighboring properties, the ALJ found the Intervenors' theories speculative and unsupported. Since this issue was not to be adjudicated, he ruled that the site access requested by the Intervenors was denied.

Position of the Parties on Appeal

The Intervenors contend that the proposed well arbitration agreement does not eliminate the need to adjudicate the impact of the mine on neighboring wells, claiming that issues exist with respect to the ability of the Applicant to provide an alternate source of water in sufficient quantity to satisfy residences and farms affected by well damage. Additionally, the Intervenors maintain that any agreement entered into regarding this matter should incorporate the strictest measures required by the Commissioner in Matter of Empire Bricks, Interim Decision of the Commissioner, August 1, 1990, as well as in the pending St. Lawrence Cement case. The Applicant opposes the appeal of the Intervenors, arguing that its stipulation to enter into a well arbitration agreement on the terms utilized in the St. Lawrence Cement case, renders this Ruling moot. Staff concurs with the Applicant. The Intervenors dispute that this issue is moot since the Applicant's agreement to adopt all the terms of the St. Lawrence Cement agreement results in a generally less stringent agreement. Instead, the Intervenors argue that the only relevant condition that should be included from St. Lawrence Cement is the condition that shifts the burden of proof to the Applicant to show that water quality or water quantity problems are not caused by mining operations.

The Intervenors also appeal the ALJ's Ruling denying adjudication of the issue that dewatering from the mine will damage springs and wetlands in the vicinity of the mine. The Intervenors theorize that the damage will result from fractures in the rock formations in the vicinity of the site, and that they offered sufficient proof of the existence of such fractures to advance this issue to adjudication. The Applicant and Staff each agree that the Applicant's experts, who had conducted field work, provided convincing explanations which showed the Intervenors' "super-fracture" theory regarding impacts to neighboring water supplies to be speculative.

Discussion

In the Interim Decision of the Commissioner in Matter of Empire Bricks, supra, the Commissioner allowed the applicant in that case to agree to a condition in its permit that it would provide potable water to neighboring property owners should the mine be found to have disrupted their groundwater supply. This permit condition eliminated the need to adjudicate the issue of whether or not the mine might possibly impact neighboring wells, since the provision of such water provided sufficient mitigation in the event of such an occurrence. In Matter of Empire Bricks, the burden was on the applicant to demonstrate that its project was not responsible for any such groundwater problems.(8)

In the present case, the Applicant has agreed to such a condition in its permit, and the terms of a well arbitration agreement to implement such a condition have been substantially negotiated and agreed to by the parties. The only issue raised by the ALJ was the extent to which the terms of the proposed agreement provided sufficient mitigation in light of the language in the proposed agreement which placed the burden on the neighboring property owner to demonstrate that the mine interfered with its well, rather than requiring the Applicant to demonstrate that its Project did not contribute to such a problem.

On appeal, the Applicant has agreed to be bound generally by the terms set forth in the well arbitration agreement utilized in the St. Lawrence Cement case. Applicant's Appeals Brief at 32. However, the terms of the St. Lawrence Cement agreement are not at issue in this case, save for the provision related to the placement of the burden of proof if groundwater supply problems should occur, and its potential to be considered sufficient mitigation pursuant to SEQRA. Ruling at 19-20. The clear inapplicability of the St. Lawrence Cement terms to this case are demonstrated by the contention of the Intervenors that if the radius of impacted property proposed in St Lawrence Cement were applied in this case, no neighboring properties would be covered by the agreement.

I find that since the Applicant has agreed to the terms of the St. Lawrence Cement agreement, which included the placement of the burden of proof on the Applicant, it is not necessary to adjudicate this issue, as ruled by the ALJ. The terms of the proposed well arbitration agreement previously agreed to by the Applicant, and applicable by their terms to this Project, should be utilized, with the only necessary modification to the burden of proof provision. All other assertions by the Intervenors were properly found by the ALJ to be speculative, and therefore, insufficient to support a proper offer of proof. Accordingly, no groundwater supply issues remain to be adjudicated.

ALJ's Ruling on Endangered Species

In Ruling 7, the ALJ determined that the Intervenors have failed in their offer of proof that timber rattlesnakes, bog turtles, cave flora and fauna or other threatened or rare species might be present on the site and, as such, the Intervenors' motion for site access to search for these species was denied.

Position of the Parties on Appeal

In support of their appeal of the ALJ's Ruling, the Intervenors contend that a number of experts in the area assert that the site should be searched for one or more protected species such as bog turtles, spotted and wood turtles, timber rattlesnakes and cave fauna which are threatened or rare, and that any search thus far was inadequate. They contend that the hearing should be adjourned and that they should be given permission to enter the premises for the purpose of conducting their own field inspection. The Applicant points out that there is no credible evidence of any of the protected species on the Project site. The nearest known nest of rattlesnakes was 4 ½ to 5 miles away and it is accepted that bog turtle are not found north of Columbia County. Moreover, the Applicant discounts any possibility that there are any cave fauna or flora since there are no caves on the site. Staff argues that the Intervenors have failed to present any valid offer of proof that any protected species are present on the Project site and that they have relied on "sheer speculation."

Discussion

For the reasons set forth in the Ruling, I concur with the holding of the ALJ that the Intervenors have not shown a sufficient offer of proof as to the presence of any rare or threatened species to be impacted by the Project.

ALJ'S Rulings on Impacts to Community Character

The ALJ made fifteen rulings comprising Ruling 8 on the potential unacceptable adverse impacts to the rural character of the community surrounding the site by the proposed Project. The ALJ determined that the Intervenors had failed to raise an adjudicable issue with respect to each of the following issues: the effectiveness of the proposed fugitive dust controls; the generation of PM2.5 by mobile sources; the potential reduction of fugitive dust by paving the entire access road; the adequacy of the permit conditions to control dust from trucks; the visual impact of dust; the potential reduction of neighboring real property values; the potential adverse impacts on farms and businesses near the proposed mine; the safety of the intersection between the mine access road and Route 149; the noise and industrial nature of increased truck traffic; the visual impacts of increased number of trucks; truck stopping sight distances; the need to put a fence around the quarry site; the adverse impacts of blasting; various mitigation measures proposed by Intervenors; and whether the Canal Recreationway Plan is a community plan as that term is used in 6 NYCRR § 617.7 requiring it to be addressed in the Draft EIS.

Position of the Parties on Appeal

The Intervenors' appeal the ALJ's Rulings on community character with respect to impacts on property values; impacts of truck traffic; visual impacts of truck traffic; impacts of blasting; mitigation measures and impacts to the New York State Champlain Canal. The Intervenors base their appeal of many of these issues in part, upon the ALJ's determination that they need to be "considered" by the Commissioner in the final decision making process defines them as adjudicable, as well as a perceived inconsistency in the ALJ's determinations in this Ruling versus his decision on other issues deemed to be adjudicable. The Intervenors also argue that the adverse impact on property values which was found not to be adjudicable should be reviewed based upon their offer of proof, and should be considered in determining need for the project under SEQRA. The Applicant asserts that the Intervenors have failed to present evidence sufficient to meet their burden of proof and have failed to raise any new issues on appeal.

In support of their appeal of the Ruling dealing with impacts of the project on the New York State Champlain Canal ("Canal"), the Intervenors argue that the adoption of the Canal Recreationway Plan by the State of New York, instead of by a local community, does not disqualify it as the plan of a local community pursuant to 6 NYCRR 617.7(c)(1)(iv). The Intervenors also rely on the placement of the Canal on the National Register of Historic Places and the fact that the plan find the aesthetic surroundings worthy of protection to demonstrate that the visual, noise and other impacts to the Canal should be adjudicated. The Applicant and Staff each concur that the Canal Recreationway Plan does not qualify as the plan of a local community under SEQRA, but rather serves as a statewide set of guiding principle, not required to be addressed in the Draft EIS. Staff suggests further that the Canal Recreationway Plan was created to serve local governments and that no local government, including Washington County, or the NYS Canal Corporation or the NYS OPRHP objected to any impacts to the Canal.

Discussion

With respect to the contention raised by the Intervenors, concerning the conflict of the Project with the New York State Canal Recreationway Plan, it is noteworthy that no representatives from the NYS Canal Corporation, the official entity having jurisdiction or control over the Canal, sought to intervene in this proceeding. The Draft EIS contains information indicating that there would be no adverse impacts on canal-based tourism or a significant negative effect on the canal environment or would detract from the natural beauty of the waterway. Draft EIS, Vol V, Appendix XVIII. Further, Staff contacted the NYS Canal Corporation and stated that the Corporation representative did not find a problem with the Project. Transcript at 335.

I am also not persuaded that any of the matters raised by the Intervenors under the rubric of "community character" warrant an adjudicatory review to inquire further. No proof was offered that suggests that a mining project would be so out of step with the character of the community that the impacts could not be mitigated, as was the case in the Deputy Commissioner's Interim Decision in Matter of Whibco, June 15, 1998. Support for this conclusion may be found in the failure of the Town of Hartford to exclude mining as an unacceptable project pursuant to its zoning powers. I also note that many of the issues which the Intervenors have raised as impacting on the character of the community such as noise and visual impacts, will be reviewed and the potential mitigation of those impacts adjudicated, as provided in this Interim Decision.

Finally, as stated earlier with respect to Ruling 4, the statements of the ALJ with respect to the issues identified by the ALJ as the impacts of which will be considered by me in determining whether to issue the permits sought, namely, impacts on neighboring property values, visual, noise and industrial nature of an increased number of trucks on the road and blasting impacts, do not by the nature of the statements of the ALJ, require adjudication.

ALJ'S Rulings on Segmentation and the Need for a Supplemental EIS

The ALJ ruled on the segmentation issue in Ruling 9, finding that the SEQRA review of this application has not been improperly segmented and therefore, no Supplemental EIS is required. The ALJ found the Intervenors' claim that the mine might someday be expanded too speculative and that since all that was required under SEQRA was for the review of the impacts of the entire area proposed to be mined, no segmentation issue was presented. The ALJ held in Ruling 10 there was no need for a Supplemental EIS to cure alleged deficiencies in the Draft EIS. The ALJ found that the issues raised by the Intervenors, were not a significant change in circumstances related to the Project, requiring the preparation of a Supplemental EIS and that the inclusion of such information in the Final EIS was sufficient.

Position of the Parties on Appeal

The Intervenors appeal the ALJ's Ruling with respect to segmentation, maintaining that the SEQRA review of the project was improperly segmented in that the Applicant failed to look at the potential future development of that portion of the balance of the Applicant's 1,300 acre tract and that there could be further segmentation if the hearing continues prior to the filing of a wetlands permit application for the access road. The Applicant and Staff both oppose the Intervenors' appeal on the issue of segmentation. The Applicant contends that it has no current intention to mine the rest of its property and, therefore, no SEQRA review is required of the entire parcel by DEC's "life-of-mine policy".

The Intervenors appeal the ALJ's Ruling denying the need for a Supplemental EIS, asserting that the Draft EIS contained numerous significant omissions that could only be cured by a Supplemental EIS. In addition, the Intervenors maintain that the withdrawal of the Applicant's mitigation plan should have been the subject of a Supplemental EIS. The Applicant and Staff agree with the ALJ that a Supplemental EIS is not required since the changes in the Project do not meet the legal criteria for the requirement of a Supplemental EIS.

Discussion

The ALJ's Ruling on the potential segmentation of the Project is sustained for the reasons stated in his Ruling. Further, a Supplemental EIS on these matters is not warranted. As explained in the above section addressing the wetlands permitting and jurisdictional issues, the analysis and evaluation required concerning the impacts to the jurisdictional unmapped freshwater wetlands resulting from the proposed access road will be analyzed in the adjudicatory hearing where a further environmental impact review will be completed.

ALJ'S Ruling on the Need to Delay the Hearing

In Ruling 11, the ALJ held that there was no reason to delay the adjudicatory hearings to cure any alleged defects in the process raised by the Intervenors' proposed issues. The ALJ determined that other issues can be adjudicated while the wetlands permit for the access road is processed.

Position of the Parties on Appeal

In their appeal, the Intervenors argue that it would be inefficient to bifurcate the hearing and that suspension of the hearing process is justified when the information supplied by the Applicant is either no longer adequate or accurate for the decision making process in accordance with the Commissioner's decision in Matter of Xanadu Properties Associates, Interim Decision, October 15, 1990. The Applicant replies that unlike the situation in Matter of Xanadu, the information provided by the Applicant in the instant proceeding is not in doubt and the Department has sufficient information in the record on which to base a decision. Staff did not respond to the Intervenors' Appeal.

Discussion

This matter is addressed above, under the ALJ Rulings on wetland permitting and jurisdictional issues.

Site Access

On May 16, 2001, the ALJ preliminarily ruled on an April 13, 2001 Motion by the Intervenors, denying them site access. A further request was made to the ALJ on September 12, 2001 for reconsideration of his previous ruling. However, the ALJ's preliminary ruling was confirmed in the ALJ's October 1, 2001, Issues Ruling. An appeal of the ruling denying site access was filed by Intervenors under separate cover by co-counsel for the Intervenors, Shanley, Sweeney, Reilly and Allen, P.C.

Based upon my evaluation of the matters noted above concerning the unmapped jurisdictional wetlands, leave is granted Intervenors to conduct pre-hearing discovery by gaining access to the Applicant's property in the vicinity of the affected area of the (1) Applicant's preferred access roadway and (2) the northern access roadway, so that Intervenors' experts can investigate potential impacts to the affected wetlands. The schedule for site access and its completion can be addressed between the parties and the ALJ will resolve any site access or scope of investigation disputes. The ALJ's determination as to a proposed schedule, completion of site access and the availability of the Intervenors' survey, is properly before the ALJ under 6 NYCRR 624.7(c) and the powers contained in 6 NYCRR 624.8(b).

Other Matters

I have reviewed the remaining appeals to the ALJ's Rulings not specifically addressed here and find no reason to overturn the ALJ's findings on these other matters.

Conclusion

For the reasons stated above, I remand this matter to the ALJ for further proceedings consistent with this Interim Decision.

_____________/s/_____________
Erin M. Crotty, Commissioner

Dated: Albany, New York
May 7, 2002

1 The Executive Summary of the Draft Environmental Impact Statement "Draft EIS" describes the Applicant's interest in the site as follows: "At this time, Jointa owns approximately 1016.5 and has approximately 289.5 under contract for a total of approximately 1306 acres." Draft EIS, Section 1.2. For purposes of this Interim Decision, the Applicant will be treated as owner of the full 1306 acre parcel.

2 Adjacent to the proposed mine site on the east is a DEC mapped, Class III wetland known as Wetland FA-1, consisting of approximately 26 acres. During the process of applying for a wetlands permit from the U.S. Army Corps of Engineers, it was discovered that additional unmapped, wetlands existed on the site and three, in particular, appeared to be connected to Wetland FA-1. These unmapped jurisdictional wetlands were designated as "Wetland A", "Wetland H" and "Wetland I" on a map of the site entitled "Impacts to Wetlands, Jointa Galusha, LLC." which map was prepared by Spectra Environmental Group, Inc., and bears the date of July 25, 2000.

3 An additional unmapped jurisdictional wetland ("Wetland K") was recently discovered and is not depicted on the "Impacts to Wetlands" map. "Wetland K" would be impacted under the Applicant's currently proposed access road since the road would cross this portion of the wetland.

5 While it is clear from the holding of the Third Department in D.B.S. Realty v. DEC, 201 AD2d 168 (1994) that the status of a parcel as a freshwater wetland is generally determined by its inclusion on the freshwater wetlands map, it is equally clear that such maps are subject to amendment by the Commissioner under ECL §24-0301(6) and 6 NYCRR §664.7(a)(2)(i). These provisions state that the Commissioner may readjust or amend the freshwater wetlands map for the purpose of adding or correcting wetland boundaries. Thus, although I have the authority to invoke the lengthy map amendment process to protect unmapped jurisdictional wetlands that may be discovered in the course of processing a permit, I also have the discretion to reserve that authority for those instances where the wetlands are not protected by the State's Article 24 permitting requirements.

6 The Applicant argues that principles of equity should prevent the Department from asserting jurisdiction and requiring a permit at this time, more than a year and a half after the Applicant had applied for and had such a permit declared to be complete. The Applicant had been "instructed" by Staff to withdraw its road access wetland permit application on the basis the Department lacked jurisdiction over the unmapped wetlands. The Department further declined to assert jurisdiction indicating that it was confident that other State and federal review and permit requirements would protect the wetlands. While I am sympathetic to the plight of the Applicant, the Department is not estopped from protecting the wetlands through the appropriate and accepted processes recognized in our laws and regulations. See Forest Creek Equity Corp v. Department of Environmental Conservation, 168 Misc.2d 567 (1996); Parkview Associates v. City of New York, 71 N.Y.2d 274 (1988). Protection of jurisdictional wetlands must be subject to the full protections provided by the permitting process established in accordance with the FWA, 6 NYCRR Part 663 and, in particular, the rigorous standards of §663.5.

7 I note that the result arrived at in this case is consistent with the precedent set forth in Matter of William E. Dailey, Inc., Interim Decision of the Commissioner, June 20, 1995, which recognized the obligation of the Department to protect unmapped wetlands which come to the attention of the Department in the course of reviewing a permit for a regulated activity. In Dailey, the Commissioner was faced with a similar issue. It was discovered during the hearing process that there existed unmapped wetlands of jurisdictional size and quality at the site that might be negatively impacted by the project. The Commissioner there suspended the hearing so that the Department could assert jurisdiction over the unmapped wetlands, prior to any further activity on the site which could harm the wetland. The parties in that case were allowed to avoid the delays inherent in a remapping of the wetlands, by entering into a stipulation that rendered the wetlands jurisdictional for the purpose of processing a wetlands permit.

8 In that Interim Decision, the Commissioner stated that with respect to the potential impact of the mine on the quantity of water in neighboring wells "...the offer of Empire Bricks, Inc. (the "Applicant") to provide potable water would adequately mitigate such an impact in the unlikely event it occurs. Therefore, if the Applicant is prepared to accept a condition which will require it to provide potable water to adjacent landowners whenever the quantity of water in the wells of such landowners is insufficient unless and until the Applicant can demonstrate to the satisfaction of the Department that its mining operation is not a contributing cause to such a problem, there is no issue for adjudication." Matter of Empire Bricks, supra, at 1.